The Traumatic Brain Injury (TBI) Fund published proposed new regulations in the New Jersey Register on December 21, 2009 (41 N.J.R. 4657) making certain changes in eligibility criteria and covered services under the Fund. The public comment period is due to end on February 19, 2010.

Why Are These Changes Being Made?

The Fund receives its revenue from a $0.50 surcharge on motor vehicle registrations. The revenue is approximately $3.4 million per year. Although the Motor Vehicle Commission began collecting the surcharge in July 2002, the Fund did not begin operations until July 2004. This resulted in a significant surplus. As the number of individuals applying to the Fund has grown, the surplus has been depleted and the Division must now restructure the Fund in order to live within its annual revenue. At one point the Fund had over $11 million in surplus. Today the surplus is essentially depleted.

What Caused the Increase in Fund Applications and Expenditures?

As with any new program it took several years of outreach and publicity to make individuals aware of the Fund’s existence, and start up was slow. The caseload grew at such a rate that in December 2008, it became apparent the Fund would need to be restructured. Work began on the review of potential ways to control expenditures.

In the summer of 2009, owing to the economic downturn, the Fund experienced unprecedented and unanticipated growth. The number of applications received each month went from 15-20 to approximately 300. In addition, requests for assistance from the Fund increased so that the average award to an individual went from $3,000 to $6,000 for a year.

What Steps Did the Division (DDS) Take to Address This Problem?

The New Jersey Advisory Council on Traumatic Brain Injury (appointed by the Governor) is identified in the enabling legislation as the body to oversee the Fund. As a result the initial Fund regulations were developed by a work group from that Council and promulgated. In April 2009 the Council was advised of the impending financial crisis with the Fund; then Division staff presented the Council with a variety of options for restructuring the Fund and sought their advice. There were two presentations to the Council on this issue. At the June 9, 2009 Council meeting the members, by vote, endorsed the Division’s plan for restructuring the Fund. Formal amendments to the current regulations were then drafted by staff.

Also, effective November 1, 2009, we placed a hold on all newly submitted Fund applications and advised the applicants that we were not able to process their applications until a later date, while also assuring them that their applications would be considered as soon as we were financially in a position to do so.

What Do the Proposed Regulatory Amendments Do?

The proposed regulations change the definition of brain injury, make changes in service coverage, and institute limitations on the duration of some services. These changes have been crafted purely for the purpose of keeping the Fund financially viable. The changes include:

Amending the definition of Traumatic Brain Injury (TBI) to reflect the federal Centers for Disease Control & Prevention (CDC) definition of TBI. Currently the definition used is that found in the federal TBI Act (different from the CDC definition) and that definition includes individuals with acquired, as well as traumatic, brain injuries. Acquired brain injuries include, stroke, brain tumors and aneurysms.

Having the ability to lower the annual cap on services from $15,000 per year in order to stay within budget.

Defining the nature and scope of various services for clarity and consistency.

Changing the “order of selection” that is to be invoked if the Fund has insufficient resources to approve all applications.

Eliminating services that have been determined to not meet the criteria of being necessary for an individual with brain injury.

What Is the Rationale for Changing the Definition of TBI for Eligibility?

The enabling statute states that the purpose of the Fund is to serve as the “payer of last resort, for the costs of post acute care, services and financial assistance provided in this state to residents of this state who have survived neuro-trauma with a traumatic brain injury” (emphasis added). Although the Division has attempted to include individuals coverage for individuals with acquired brain injury, statistical analysis reveals that 60% of the current caseload of 2,230 are individuals with acquired brain injury. To continue service at our present level, including those with acquired brain injury, would require that we have a budget of at least $13 million annually.

Reduction of the caseload size, together with the other regulatory amendments, will enable us to continue services to those with TBI under our current appropriation, and to meet the legislative intent of the Fund. In addition, the Division remains concerned about our ability to meet the needs of returning soldiers and national guard personnel who have sustained a TBI in the war. In general these military personnel will meet the TBI definition without question.

Is the TBI Fund Out of Money?

No. At the present time we have sufficient funding to pay our existing obligations to vendors and providers. As of November 1, 2009 we have placed all new applications on hold, but will review them under the existing criteria as we receive additional monies from the Motor Vehicle Commission. Until the date the amended regulations are adopted, we will continue to accept all applications submitted under the existing rules.

Did the Fund Overspend?

No. Based on the amount of money in the Fund and projections based on caseload and expenditure history (between 2004 and the end of 2007) the amount of funding expended was appropriate and manageable. We began to use some of the surplus in 2008 to cover costs but also were more conservative in the amount of Fund awards. In the summer of 2009 the significant influx of applications and the increased requests for service created the current financial crisis.

Are Vendors Being Paid for Services Rendered?

Yes, vendors are being paid but there is a significant backlog of bills. Staff has to reconcile each bill against the award made to the individual Fund recipient. Errors and omissions in bills submitted have slowed the payment process, in many instances. Although we have three full time staff working diligently to get bills paid and accounts up-to-date, there have been delays in issuing payments because of the sheer volume of bills we receive.

What About Individuals with Acquired Brain Injury (ABI) Who Are Currently Receiving Services?

All currently approved and funded cases, whether TBI or ABI, will continue to receive service until the end of their approved “funding year.” At that point those with ABI will not be eligible to re-apply for Fund coverage, but those with TBI will be able to do so. All individuals with ABI who have submitted applications between November 1, 2009 and the date of the adoption of the amended rules will be reviewed and, if awarded services or supports, will receive them for a one-year period. In addition, we have instructed our contracted TBI Fund Case Managers to work with each individual who becomes ineligible to help them locate other potential services.